The argument is still not necessarily settled, however; some analysts claim that Vaughn’s ruling only applied to the two individual petitioners who challenged Prop 8, and since it was not a class action suit it had no bearing on the rest of California residents. The legal tussle is likely to continue — although since no one seems to have legal standing to defend a constitutional amendment approved by 53% of voters (how can that be???), it’s unclear who will be able to represent Prop 8 in any future hearings.

In any event, the ruling has no effect on any of the other 49 states, so the nationwide debate over gay marriage will continue.

This decision bothers me a lot more than the DOMA case. The voters in California amended the state constitution by referendum legally, to define a legitimate government policy regarding the recognition of marriage. The court is making the case that this is a matter for California to settle, not the federal courts, and there is a very good case to make there. However, the effect of this is to overturn an election whose legality was never in doubt just because some people didn’t like the outcome. That to me is a more dangerous outcome than a precedent-setting decision on standing.

(Original post below.)

Today, June 26, is Gay-marriage-pocalypse Day for the United States and American culture. Depending on how one or two cranky Supreme Court justices feel, starting today America will either be transformed into the most progressive and transgressive forward-looking nation in history, or will descend into an endless nightmare of fascistic medieval hate.

● They could STRIKE DOWN California’s Proposition 8 (which banned gay marriage in the state).

● They could punt and DECLINE TO RULE.

● Or they could UPHOLD it.

(Click image to view full-size:)

If they STRIKE DOWN Prop 8, it could be on the basis of three different possible legal grounds:

● They could rule that ALL marriage bans of any kind in any state are unconstitutional, which would be a total and history-changing victory for the pro-gay-marriage side;

● They could rule that the existing muddled compromises known as “civil unions” and “domestic partnerships” are essentially bogus and must be upgraded to full marriage status — which would affirm gay marriage in the 12 states that already have it and upgrade “civil unions” to full marriage in the 7 states that currently have the compromise (while the remaining 31 states would still have no gay marriage, at least for now).

● They could limit their decision to the technicality that, due to an earlier judicial ruling, California very briefly had legal gay marriage before this newly established right was unfairly “taken away” by popular vote through Prop 8 — which would restrict the Supreme Court’s decision’s effect solely to the state of California.

If they DECLINE TO RULE; then there are two potential rationales for the decision, both of which are based on legal technicalities:

● They could decide that the traditional-marriage advocacy groups defending Prop 8 in court (because Governor Jerry Brown refused to do so) had no “legal standing” in the case, and thus they lose by default — but this would have no relevancy outside the state of California, which would “regain” gay marriage;

● They could admit that the Supreme Court just made a boo-boo in even looking at the case in the first place, refuse to make any decision at all, in which instance an earlier lower-court ruling, which tossed out Prop 8, would remain in force — but once again which would only apply to California.

And finally if they UPHOLD Proposition 8, the only conceivable legal rationale would be that:

● States retain “states’ rights” according to the Tenth Amendment in those issues over which the Federal government has no valid interest — and the court would essentially be ruling that the Feds must stay out of the “definition of marriage” game, leaving each state to decide as it chooses. In this case, the other 11 states with gay marriage would be able to keep their laws, but the 39 states (including California) which have decided to retain opposite-gender-only “traditional marriage” would be able to keep their own laws (or change them later if they see fit).

Clear?

My prediction? It’s right after the page break.

So far this season, the Supreme Court has been in a punting mood, as most decisions have essentially “split the difference,” neither striking down nor definitively upholding any particular issue, but instead tinkering with legal niceties and inscrutable details (see their Affirmative Action and Voting Rights Act decisions for the most noteworthy examples of this attitude).

As a result, I predict that the Supreme Court will punt on gay marriage as well, and will either DECLINE TO RULE or possibly STRIKE DOWN Prop 8 but only on limited technical grounds that solely affect California.

I’d be pretty surprised if they went to one or the other extremes — force all 50 states to accept gay marriage; or alternately rule that the Feds have no basis to define marriage at all — which will be pretty disappointing for people on both sides of the aisle who want the argument to just finally be over (with their side winning conclusively, of course).

I will not attempt to restate Zombie's reply to you except to say that the refusal of a state's executive branch to defend a constitutional amendment passed by popular referendum is the essence of lawlessness and defiance of the democratic process. This can easily cut both ways depending on the politics of the executive.

Nature has already decided the outcome. Gay couples make love to procreate exactly 0% of the time, due to technical issues, but that's not the same as a technicality.

The gov't can make it legal for me to fly without visible means of support, or even mandate such a thing on pain of death. 0% of people will fly.

Since the single defining characteristic that actually makes marriage marriage has been the only one thrown to the side of the road as a technicality, birth, there is no other legal definition. Even mutual love is not legally required, or sentience. Or is it? Does that mean I could marry a toaster and the state would have to recognize it? Does the state then say both must be human?

What is human? Do I take a Turing Test, or a Voight-Kamph Test? Couldn't I marry a mass of wires with blinking lights and a speaker that says "Hello?"

Will we now have "human marriage?" Who will get angry then, cuz they are always there, and they never shut up. Can I marry someone in a coma? What about the bed they're in? Who signs for each? Can I marry a Siamese Twin? What about a two-headed snake?

Can I marry the Crab Nebula? I could sign a document attesting that an alien there only I can communicate with had agreed.

I'd like to preside over the marriage of a cute little kitty cat and a scorpion.

Hmmmm -- but a "Lack of standing" ruling would have serious deleterious side effects which could undermine the rule of law totally aside from your or anyone's opinion of gay marriage, and have potentially serious side effects on cases of all sorts in the future.

Consider: In this case, the voters passed a state constitutional amendment, which was then challenged in federal court with the claim that the state Constitution would then violate the US Constitution. Bear in mind that this claim is unproven until and if the Supremes agree, which they may not.

HOWEVER, according to state law, the Governor and/or the Attorney General are required to defend the state's position in lawsuits, and in this case the state's position was determined by the voters to be -- no gay marriage. And yet our Guv and AG refused to defend the will of the voters in court, because they personally disagreed with the election results.

Without an official state representative defending the state law, an extraordinary exception was made that allowed the law's authors to defend it in court. Admittedly this was unusual, but there was no other option under the circumstances.

But if your "best case scenario" comes true and the Supremes rule that the law's authors ALSO had no right to defend the law, that means that NO ONE HAD THE LEGAL RIGHT TO DEFEND THE LAW IN COURT, despite the fact that 53% of the state voted for it.

This would be bizarre and unprecedented, and could lead to identical situations in any state on any side of the political spectrum.

Since anyone can challenge any law in court (with a good enough lawyer helping), that means that and any all voter-approved referendums can easily be baselessly automatically quashed simply by challenging them in a state in which the governor didn't like the election results. Without an official defender, the law -- whatever it may be, left/right/neutral -- could not be defended by anyone OTHER than the governor since the Supremes have now ruled that third parties have "no standing."

Thus, any governor or any state could essentially become a dictator ignoring the will of the people, simply by ginning up a challenge to a law they don't like and then turning around and refusing to defend it in court.

Beware of poisoning the process simply for a temporary partisan "win."

America has ceased to be the leader of the world. All it can do is threaten other nations like a street thug and then come home and lose its mind completely, ending up in marriages with the same sex. The last 10 ten years, American economy has grown close to 0%. That much for American exceptionalism. Fools in 1951 asked for the American Dollar to be treated as the world reserve currency, and that beget all the problems that are besieging America right now. How is it that Americans who claim to live in a Republic, let 5 people who form the majority in a court of 9, make the law of the land? How is it that a court has the authority to overrule the Will of the People who reinstated the legitimacy of traditional marriage, an institution that predated not just the establishment of the nation and its Constitution, but that of the entire western civilization? What do those 5 justices think themselves to be, greater than all the sages and philosophers who have walked the earth over millennia? Holding US Dollars is to endorse all this nonsense. Diversify out of US Dollars and Dollar denominated assets, until sanity returns to the US.

Victory party going full bore at Castro and Market in San Francisco. Human Rights Campaign flag out in full force, replacing standard rainbow gay victory flag. Prediction from ground zero -- they will not stop at marriage. They will force all institutions to defer -- including churches. Their goal is erradication of any kind of sex roles. Ramifications to society are enormous.

On the plus side, freedom-loving men won't have to suffer any more nagging to "man up and marry". We can marry our roommates, enjoy the tax benefits, and let women screw each other over in divorce court (when family law starts harming women, it will get changed).

It's time for conservatives to stop fighting change and start leading Reductio to its Absurdum.

Under the California Constitution, state agencies are prohibited from not following a provision of the California Constitution based only on a trial court's ruling that such provision is unconstitutional. Such a ruling, to be followed by the rest of the state, must come from a court of appeals. Thus, under the California Constitution, Judge Walker's ruling is confined to the parties and cannot be precedent for all of California. of course, Jerry Brown will ignore the California Constitution and order all counties to issue marriage licenses to gays. If some county refuses (there are a lot of red counties in California) the issue could be teed up again with a real party - i.e., a California County - defending Proposition 8.

CALIFORNIA CONSTITUTIONARTICLE 3 STATE OF CALIFORNIA

SEC. 3.5. An administrative agency, including an administrativeagency created by the Constitution or an initiative statute, has nopower: (a) To declare a statute unenforceable, or refuse to enforce astatute, on the basis of it being unconstitutional unless anappellate court has made a determination that such statute isunconstitutional; (b) To declare a statute unconstitutional; (c) To declare a statute unenforceable, or to refuse to enforce astatute on the basis that federal law or federal regulations prohibitthe enforcement of such statute unless an appellate court has made adetermination that the enforcement of such statute is prohibited byfederal law or federal regulations.

I predict the Left Wing fundamentalists will egg on "gays" to sue churches who will not marry them. These churches will be forced to accept them or close entirely because they will not be able to afford any expensive litigation. This will drive Christians, especially Catholics, to pray at friends homes or in private. This is catastrophic to freedom of religion. You will see many churches just fold. And not far behind I predict those who oppose this will be taken to court and heavily fined if they do not comply. Welcome to a Brave New America. P.S. The wild card in this is the great religion of Islam. The fastest growing religion on the planet.

I think it will depend on what the particular State and local laws are. In some cases, a clergy person acts as an agent of the State and signs the marriage certificate. In such cases, I believe the clergy can be required by law to perform same-sex-marriages in states that allow such. In other cases, if all that the is done is a religious ceremony for a couple that are congregational members, then I don’t think there can be any legal compulsion to perform SSM’s

Unless there is an absurd amount of government interference, well beyond what is allowed by the Constitution, Freedom of Religion will remain. Sadly, given the recent scuffle over forcing religious institutions to provide prophylactics, it is possible, but only if the populace allows the continued overreach of federal power.

Well, the rulings are in. Not my preferred outcome, but I agree with another poster who said govnt should get OUT of the marriage biz altogether. The law is there is enforce the legal contract side of marriage, NOT to define what it is. My big question now: Since LGBTs can now marry (in the states where it's legal), will the Feds step in when churches refuse to perform those marriages? If so, wouldn't THAT be a huge violation of separation of church & state? Of course, libs/progs don't really believe in G*d or church, so why they'd want a religious blessing on their "union" is beyond me -- but they'll twist any/everything to their own ends. I'm betting that sep. of church/state will become both the "new" lightening rod as well as, at some point, another test case.

What really needs to happen is for government to get out of the marriage business entirely. The only authority the state should have is to issue contracts of civil union for legal purposes regarding matters of inheritance and spousal rights.Any couple could then have any religious ceremony they wished conducted by any religion they felt comfortable with or none at all.

Looking at the "decline to rule" reasonings, I really don't see a rational basis for either. And the reasoning for a narrow California-only strikedown would cast the Court in even worse light than Roberts' worst nightmares.

Then again, so did upholding Obamacare...

2 years ago

Report Abuse

2 years agoEditLink To Comment• Report Abuse

This comment has been reported.
Click here
to view it anyway.

1
2Next View All

... (show more)

Update CommentCancel

One Trackback to “Gay Marriage: All of Today’s Possible Scenarios in One Handy Chart”